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If there is a spectre haunting medicine, it is the spectre of poverty. In every country there is an underlying of disparity between the resources that society is prepared to devote to medicine and the cost of the healthcare they demand. Like a shoe that is too small, the pain is felt in different parts of the foot, and reactions vary with the prevailing mores of different societies. In Quebec 800 physicians have signed a petition calling for their own pay to be cut to enable better care to be delivered.[i] In England a lack of nurses has forced Oxford to cut chemotherapy for terminal cancer patients[ii] whilst Leicester was forced to cancel “significant numbers” of cancer operations[iii] due to a shortage of beds.

Where this disparity shows itself in unrealistic demands or intolerance of sub-optimal outcomes, the pinch is felt most acutely through the courts. The Medical Defence Union, the largest UK mutual indemnifier of doctors is now refusing to cover spinal surgery because the risks are too great and obstetric cover is only available in limited form at great expense. Within the NHS, the cost of compensating victims of obstetric negligence is underwritten by the state and it is clear that the bills are being deferred in a fashion that will not be sustained for very long within the existing envelope. However the detail is even more alarming.

In the UK, as in every other advanced country, childbirth is safer than ever before, but it remains less safe than it should be[4]. NHS figures now show liabilities that are being incurred to pay for avoidable harm that, when eventually paid will cost far more than the total amount NHS commissioners pay English hospitals for all aspects of obstetric care, including that compensation. This is unsustainable.

NHS commissioners pay hospitals in England around £2.7 billion to provide maternity services each year[5]. As well as funding front line obstetric and midwifery care, this includes subscriptions to the Clinical Negligence Scheme for Trusts (CNST), a voluntary risk pooling scheme administered by NHS Resolution (NHSR) and underwritten by the state. In 2016-2017, NHSR paid £1.8 billion for all medical malpractice claims in England. About 50% was allocated to obstetric claims, so that it seems that about a third of the total obstetric budget was actually used for old obstetric damages finally paid over in that year[6].

However, because CNST is a pay-as-you-go scheme, this ignores the money earmarked by the Government for future payments. One part of this has already been committed in the form of Periodical Payment Orders (PPOs), in effect these are inflation proofed pensions agreed as part of the settlement to be paid over the lifetime of the claimant. A second part are claims already made but still being disputed. The third and largest part are the cases incurred but not reported (IBNR). All three categories are dominated by obstetric claims because parents tend not to claim so early as other patients and the cases take much longer to handle because the damages cannot be assessed until the children are aged about 8[7]. As a result about 80% of the provisions for future payments probably relate to obstetric cases.

These provisions dwarf the payments made each year. In March 2015, £28.6 billion was set aside – 20 times the total payments made in that year and about 10 times the commissioning expenditure for all aspects of obstetric services[8]. In that year the Treasury changed the long-term discount rate that they apply to the quantification of all future liabilities. The effect on the NHS damages provisions was devastating: the figure went up from £28.6 billion to £56.4 billion. Now the money ear-marked for negligence claims was over 20 times the budget for the whole obstetric service.

The following year the Lord Chancellor used her statutory power to change the personal injury discount rate the courts use when quantifying the cases settled by lump sum damages, to bring it into line with the Treasury rate. The response was to trigger a massive expansion of inflationary expectations. The actuaries earmarked an additional £4.7 billion in for claims provisions. Lawyers drafting claims for such children sharpened their pencils to devastating effect. The record damages ever awarded for a birth injury was the £14.6 million awarded in 2015 in the case of Robshaw but cases demanding three times that figure are now routine.

In April 2017, the total provisions increased to £64.9 billion, an increase of £8.6 billion from the year before.[9] If 80% of that £8.6 billion relates to obstetric cases and we add the money actually paid in year, we find the NHS has in that year incurred liabilities that are three times more than the total budgeted for the care for pregnant women, including the payment of those damages.

These escalating costs are likely to continue. In response to changing conditions in financial markets, the Treasury further reduced the long term discount rate in December to -1.56%. This will be reflected in the Treasury provision and will eventually trickle through to the level of claims. If nothing is done about tort reform, I predict that we will see the first claim of over £100m within the next five years.

In the belief that a better response might eventually reduce the volume of claims, the NHS Resolution has also recently started the Early Notification Scheme, which requires the hospitals proactively to seek out and investigate all maternity incidents that are likely to result in severe brain injury. This will almost certainly increase the number of claims settled in the next few years. We know from the RCOG’s Each Baby Counts programme that that there are about 750 term babies born in such a condition that they need cooling every year: not all of them will go on to cerebral palsy and not all of those will be able to prove negligence, but when premature births are included it is likely that the number of claimants will be much greater than the 120 who succeed each year today. As the assumption spreads that all such cases probably should be investigated, we may anticipate that a large number of deliveries that occurred in previous years will be investigated by their relatives to see whether they have a claim. There is likely to be an enormous reservoir of claims from previous years that will require the IBNR provision to rise.

This means that we must anticipate that over the next 2-3 years the Treasury will increase their provision for liabilities that have been incurred by the NHS to a figure greater than the annual total budget for the NHS.

Planning to spend more on litigation and lawyers than the total budget for making those payments and running the obstetric service is not sustainable. Of course we should make even greater efforts to reduce malpractice claims through improved patient safety. Researchers are investigating the socio-technical factors behind the misinterpretation of the baby’s heart trace, which represents 15% of the total value of obstetric claims and this may help to inform the development of future training and educational tools. Although state insurers are not patient safety organisations, they do acknowledge a role in reducing harm.[10]

However, the fact that this is attracting a lot of attention from arrivistes to the problem does not mean it is solvable. The professionals and the Service have recognised the appalling nature of this problem and the devastating effect of the professional failure for decades. I have been lecturing at Patient Safety Conferences held by numerous NHS bodies and the RCOG for about 40 years. The issues of training and understanding why people make the same mistakes in fetal monitoring has not changed sine the 1970s. Neither will-power from the top nor inspired over-simplified insights from amateurs who think they know better than the professionals will change anything significantly and it is absurd to suppose that it will.

The only innovation so far proven to work is the 1:1 presence throughout of a highly trained midwife with appropriate medical support.[11] This coincides with the promise made in 1993, when normal parturition was taken away from the doctors: one of the premises of Changing Childbirth was that every woman in labour should have 1:1 midwifery presence. It has never been delivered and today the stresses associated with these claims contributes to a shortage of midwives that is predicted to get worse for demographic reasons. Now 30% of obstetric trainee rota posts are also unfilled. There is a belief that appointing more consultants will improve outcomes, but there is no evidence to support this belief and there are no appointable candidates except for those presently in the training grades. The truth is that the enormity of this litigation burden threatens the viability of maternity services and demands a coordinated approach across the NHS.

Furthermore, the reality is that a lower tolerance of obstetric negligence may for no very obvious reason eventually reduce morbidity, but it will more obviously increase claims volumes. An effective remedy would have to include tort law reform to reduce the amount paid to such claimants, especially abolishing the one-patient institutions that are prohibitively expensive. We see demands for home care regimes involving two carers 24/7, which demands 8 full time employees. There is aIso a demand for a host of therapies and equipment, with houses large enough to accommodate them all. We know that an optimal care regime will look very different: a small unit of 10 can achieve economies of scale with superior supervision, career progression and training for the carers at a fraction of the price. It is not right or affordable that vast sums should be top-sliced from the NHS to finance such things to the detriment of other patients. It would be more rational to increase the amount spent on midwives and doctors.

However this will need primary legislation and there is no evidence that the necessary changes will be politically tolerable without a revolutionary change in attitudes. The judiciary have developed two concepts that have proved to be unaffordable. The first is that the courts should, as nearly as money can, put the claimant in the position that they would have been in if the tort had not been committed. In the context of personal injury. That concept has never made very much sense because it is hard to put a price on the value of a limb or the loss of a sense. But when a patient has suffered profound brain damage and lost the ability to move at all, it is a meaningless equation, not least because the victim has been deprived of the ability to understand any aspect of it. It has evolved into a demand for enough money to buy a range of services that it would not be unreasonable to provide, even though the claimant may choose to use none of them.

The second is that damages should be computed on the basis of certainty, even though the claimant has only proved the breach of duty, causation of damage and need for any item on the balance of probabilities. Once the decision to award is made, the claimant is entitled to 100% of the cost of whatever the judge is persuaded it is reasonable for him to receive. It is the price of this certainty that has spiralled upwards in the 10 years since the last financial crisis as interest rates have fallen, those managing funds find it easier and safer for themselves to invest in index linked government stocks and so the price of those vehicles has increased.

Other countries have found ways of taming this particular dragon. Australia brought in some tort reform after an indemnity crisis led to the Ipp Review in 2002[12] and various US states have taken measures to control the liabilities. If this is only one aspect of the general spectre of unaffordability that threatens the viability of modern medicine, it also seems to be the place where the shoe looks most uncomfortable for the NHS at the moment. We do not yet know how much extra money the Government is proposing to add to the long term settlement for the NHS, but unless there is a complete change in the attitude of the law, it will largely be devoured by the claimants and their lawyers. We need a response if we are going to bridge this disparity between resources and demand because the courts have provided a megaphone for protest that cannot be ignored because it is now so loud that it threatens the viability of the service that it criticises.

The reality is that doctors, midwives and patients should unite to call for fundamental tort reform. You have nothing to lose but your grossly inflated claims and you have a health service to win. You cannot have both.

Bertie Leigh

The author is a lawyer who has acted for doctors and the NHS for 40 years. His views are of course his own and not necessarily shared by any clients.

“‘Leading light’ Bertie Leigh is the senior partner at the firm, as well as head of the clinical negligence practice. Described as ‘the doyen of defendant clinical negligence’, he brings over 35 years’ experience to bear on his work for defendants.” (Chambers UK 2011)

“Clients find him ‘a joy to work with’ and are impressed by the way he ‘cuts straight to the heart of the issue.’ Commentators admire his ‘intellectual and holistic approach’ to clinical negligence.” (Chambers UK 2012)